State v. Coulter

• Court: Mississippi Supreme Court
• Writing for the Court: REED, J.
• Citation: 61 So. 706,104 Miss. 764
• Decision Date: 05 May 1913
• Parties: STATE v. LOUIS COULTER

61 So. 706

104 Miss. 764

STATE
v.
LOUIS COULTER

Supreme Court of Mississippi

May 5, 1913

March, 1913

APPEAL from the circuit court of Jefferson Davis county, HON. A. E. WEATHERBY, Judge.

Louis Coulter was indicted for embezzlement. From a judgment quashing the indictment, the state appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Frank Johnston, assistant attorney-general, for appellant.

There are two questions presented in the case by the quashing of the indictment. They are, first, whether the absence of the foreman from the grand jury room in the investigation of this case by the grand jury, and the finding of this true bill would vitiate the indictment in the case. Second, whether the presence of Mr. Livingston, who was the county prosecuting attorney, and who was before the grand jury not only at their request, but at the request of Mr. Hall, the district attorney, on the facts as shown by the evidence in this case, invalidates the indictment. I will discuss these questions in the order presented.

In the first place, the absence of Mr. Holloway from the grand jury room while the evidence was being taken before the grand jury, and the grand jury were acting in the finding of this indictment, in my judgment, I respectfully submit to the court does not vitiate this indictment. The court will observe that this bill is signed by the foreman of the grand jury. It is also signed by the district attorney, and is marked filed, and made a part of the record so that the indictment in this case is most fully and amply authenticated as a record according to all the decisions. It was proper for Mr. Holloway, who was also president of the Bank of Carson, not to participate in the proceedings and deliberations of the grand jury in respect to this particular indictment, and he acted with propriety in being excused. He signed the bill as foreman but his signing of the bill as foreman was not an invalid authentication of the bill of indictment, nor did it necessarily imply or require that he should have been present in the grand jury room, and participating in the deliberation of that body, when the indictment was found. The whole function of the signature of the foreman of grand jury to the true bill is simply an authentication of the fact that it was found by an adequate number of jurors.

Mr. Bishop in the 2nd vol. of New Criminal Procedure, p. 548 says, "It is immaterial on what part of the bill the foreman's signature appears." He further says, "and such endorsement by the foreman simply imports that the finding was by an adequate number of jurors." 2nd Bishop New Crim. Procedure, sec. 698, par. 2, and sec. 699, par. 1.

As to the functions and effect of the signing of the bill by the foreman that was certainly an authentication, of the fact that it was found by an adequate number of jurors, and conformed to the law in repsect to the mode of procedure in the grand jury room. I cite the following cases: Turns v. C., 6 Met., 224; Dutell v. S., 4 Greene, Iowa, 125; Spigener v. S., 62 Ala. 383.

I find no requirement in the statute, and I am not aware of any rule of common law that requires the actual presence of the foreman of the grand jury in the room in each and every case when an indictment is found by the grand jury. Suppose the foreman, was, as in this case interested in the matter in such a manner as to render it highly improper for him to act upon the grand jury in the particular case, suppose he was ill or unavoidably absent, or could not participate in the finding of an indictment because of some other pressing reason, I respectfully submit that it could not be held that an indictment thus found by the grand jury and by nineteen members thereof was a nullity because of his unavoidable absence from the grand jury room at the time when the indictment was actually found.

In our crimnal jurisprudence, we have certainly enough of the technical, arbitrary, and often purely artificial technical rules in respect to criminal procedure, that are availed of by persons charged with criminal offenses, without adding this refined technicality to the list. It is true that our statute provides that a foreman shall be appointed for the grand jury, and so a foreman was appointed for this grand jury, and he took the oath of office, and the other grand jurors all took exactly the same oath which the foreman took, and the only official function that the foreman performs is that he is the spokesman of the grand jury, and presides over the deliberations of said body, and probably gives the proper directions to the sheriff for serving process. He signs the indictment as foreman, but as shown by the authorities cited, that does not require that he shall have been present in the grand jury room when the particular indictment was found. It would have been idle ceremony for the trial court to have undertaken to appoint a special foreman for this particular indictment, in the investigation of this charge. Indeed, it may be seriously doubted whether such a proceeding as this on the part of the trial judge would have been technically correct. This foreman was not incompetent as a grand juror, but it is certainly a matter of propriety that he should not act in a case where he was president of the bank that was the subject of the embezzlement and the investigation by the grand jury. An adequate number of jurors found the bill. They found it upon evidence adduced before them, and they voted upon this particular matter, and found the indictment, and it was thus endorsed by the foreman.

It was easily within the knowledge of the foreman of the grand jury that this bill had been found, and that it was a true bill, and he properly authenticated the same. In considering this as a purely technical and artificial question of law, I submit to the court that the procedure in this case was absolutely and substantially correct in every respect. No wrong has possibly been done to the defendant in the case, and I respectfully submit to the court that it would carry the refinements of technicalities far beyond the line of any consideration of substantial justice to strike down the indictment on any such ground.

There are numbers of cases holding the rule that even where a statute provides that a foreman should certify the indictment to be a true bill on the indictment itself, it was held to be only directory. Among these cases are the following: State v. Mertens, 14 Mo. 19; State v. Lassley, 7 Port., 526; Greeson v. State, 5 How. Miss. 33; Bennett v. State, 8 Hump. 118; State v. Muzingo, Meigs., 112.

I can find no authority holding that the foreman should be present when each indictment is found any more than that every other member of the jury should be present at the finding of each indictment lawfully returned by the grand jury.

We are forced to no suppositions or technical persumptions of law in regard to improper influences on this grand jury, for it is proven as a fact in the case clearly and specifically on the hearing of the motion that Mr. Livingston was there in a proper manner at the request of the grand jury, and on the invitation of the district attorney, and he was there expressly to give the grand jury legal advice, and it was shown that he made no suggestions to the grand jury in regard to this case,...